Citation Nr: 0720860
Decision Date: 07/12/07 Archive Date: 07/25/07
DOCKET NO. 02-04 518 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to an initial rating in excess of 50 percent for
bipolar affective disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Celeste Farmer Krikorian, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1992 to May
1996. This matter comes to the Board of Veterans' Appeals
(Board) on appeal from a rating decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Los Angeles,
California.
FINDING OF FACT
The veteran's bipolar affective disorder is characterized by
occupational and social impairment with reduced reliability
and productivity but without deficiencies in most areas or
total occupational and social impairment.
CONCLUSION OF LAW
The criteria for an initial rating in excess of 50 percent
for the veteran's bipolar affective disorder have not been
met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§
3.102, 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9432 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
This appeal arises from the November 2000 rating decision
granting service connection and assigning an initial 50
percent rating for a bipolar affective disorder, effective
June 1998. When the assignment of initial ratings is under
consideration, the level of disability in all periods since
the effective date of the grant of service connection must be
taken into account. Fenderson v. West, 12 Vet. App. 119
(1998). Therefore separate, "staged" ratings may be assigned
for PTSD from such date as evidence warrants. Fenderson v.
West, 12 Vet. App. 119, 126 (2001).
The veteran seeks an initial rating in excess of 50 percent
for his service-connected bipolar affective disorder.
Disability evaluations are based upon the average impairment
of earning capacity as contemplated by the schedule for
rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38
C.F.R. Part 4 (2006).
In order to evaluate the level of disability and any changes
in condition, it is necessary to consider the complete
medical history of the veteran's condition. Schafrath v.
Derwinski, 1 Vet. App. 589, 594 (West 2002).
In cases in which a reasonable doubt arises as to the
appropriate degree of disability to be assigned, such doubt
shall be resolved in favor of the veteran. 38 C.F.R. § 4.3
(2006). Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. 38 C.F.R. § 4.7
(2006).
The veteran's bipolar affective disorder is currently rated
under Diagnostic Code 9432, which in turn refers to the
General Rating Formula for Mental Disorders. Under this
Formula, a 50 percent rating is assigned for occupational and
social impairment with reduced reliability and productivity
due to such symptoms as: flattened affect; circumstantial,
circumlocutory, or stereotyped speech; panic attacks more
than once a week; difficulty in understanding complex
commands; impairment of short- and long-term memory (e.g.,
retention of only highly learned material, forgetting to
complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; and,
difficulty in establishing and maintaining effective work and
social relationships.
A 70 percent rating is assigned for occupational and social
impairment, with deficiencies in most areas, such as work,
school, family relations, judgment, thinking, or mood, due to
such symptoms as: suicidal ideation; obsessive rituals which
interfere with routine activities; speech intermittently
illogical, obscure, or irrelevant; near-continuous panic or
depression affecting the ability to function independently,
appropriately and effectively; impaired impulse control (such
as unprovoked irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a work-like setting), and; inability to establish and
maintain effective relationships.
A 100 percent rating is assigned when the evidence reflects
total occupational and social impairment, due to such
symptoms as: gross impairment in thought processes or
communication; persistent delusions or hallucinations;
grossly inappropriate behavior; persistent danger of hurting
self or others; intermittent inability to perform activities
of daily living (including maintenance or minimal personal
hygiene); disorientation to time or place; memory loss for
names of close relatives, own occupation, or own name. 38
C.F.R. § 4.130, Diagnostic Code 9432 (2006).
The record indicates that the veteran has been continually
treated by VA for symptoms relating to bipolar affective
disorder since November 1997. During the course of his
treatment, the veteran has been hospitalized on several
occasions for suicide attempts or suicidal ideation. He was
hospitalized for periods lasting from less than one week to
over two weeks in March 1998, November 1999, and September
2000.
His chief complaints at the time of his 1998 hospitalization
were racing and suicidal thoughts, sleeplessness, anxiety,
lack of impulse control, irritability, depression, hypomania,
and elevated speech. In November 1999, the veteran was
admitted to the hospital due to depression and anxiety, and
his treating physician considered him potentially harmful to
himself. Upon admission in November 1999, the veteran's
treating physician noted that the veteran was not taking his
prescribed medications, and he observed insomnia, dysphoria,
headaches, racing thoughts, mania, and impulsivity.
Upon hospital admission in September 2000, the veteran stated
that he had been noncompliant with his medications and had
consumed alcohol. He stated that he came to the emergency
room prior to his hospital admission due to racing thoughts,
depression, and suicidal thoughts. Mental status examination
revealed a calm, cooperative, well groomed male with no
abnormal movements and good eye contact. His speech was
noted as tangential, verbose and hurried. He was vaguely
positive for paranoia and had no homicidal ideation.
Judgment and insight were fair. Upon discharge, he
reportedly had no suicidal ideations, no delusions, nor
psychotic symptoms. His mood was notably improved, and he
tolerated his medications fairly well.
The veteran underwent psychological evaluation for VA
purposes in September 2000. Mental status examination
revealed mood swings, irritability, impaired impulse control,
outbursts of anger, depression, anxiety and suicidal thoughts
without plan or intention. The veteran's social functioning
appeared to be impaired to the examiner for the veteran said
he liked to be alone and use alcohol to forget his problems.
The veteran stated that he had delusions that the police were
after him. He reported no hallucinations. The examiner did
not observe evidence of acute panic attacks, bizarre or
inappropriate behavior, schizophrenic symptoms, homicidal
ideation, or obsessive or ritualistic behavior that
interfered with routine activities. The veteran's speech was
reportedly sometimes loud and pressured. His short-term and
long-term memory were noted as impaired. He was oriented to
person, place and time and presented himself adequately
groomed. According to the examiner, the veteran exhibited the
ability to maintain other basic needs within normal limits.
VA psychiatric treatment notes indicate that after the
veteran's September 2000 psychiatric evaluation, the veteran
was treated on a regular then sporadic basis until his
psychiatric evaluation in May 2002. According to the
veteran's statements, he discontinued alcohol, and his mood
was controlled after changing his medication on a couple of
occasions. In August 2002, the only reported symptoms of his
disorder were grandiose ideas and slightly pressured speech.
In May 2002, a psychiatric evaluation for VA purposes was
conducted. The veteran complained of anger, irritability,
mania and difficulty concentrating. The examiner reported
that the veteran was well-groomed and performed all hygienic
functions for himself. The veteran's speech was reasonably
normal except for a noted period of volatility. According to
the examiner, the veteran had difficulty linking his
thoughts, became highly circumferential and tangential, and
tried to control the interview. His mood was reported as
manic. The veteran was neither suicidal nor homicidal; his
short-term and long term memory were intact. There was no
evidence of hallucinations. He was able to perform a number
of tests indicative of concentration, calculation and
abstraction. There was no evidence of delusions or
psychosis. His insight and judgment was guarded, and his
stream of thought was very productive.
Since the 2002 psychiatric evaluation, the record reflects
that the veteran continued VA psychiatric treatment. He
continued to deny suicidal or homicidal ideation. He
continued to be cooperative in treatment and was enrolled in
a work program (See VA treatment notes from May 2002 to July
2004).
The record reflects that the veteran underwent psychiatric
evaluation for Social Security Administration (SSA) purposes
in March 2004. The veteran's reported history was reflective
of that made in earlier psychiatric evaluations. The
diagnosis given was bipolar I. The examiner found that the
veteran had no present symptoms of his disorder at the time
of the examination but noted his concern of relapse.
After reviewing the totality of the record, the Board finds
the preponderance of the evidence is against a disability
rating in excess of 50 percent for the veteran's bipolar
affective disorder. The evidence does not show a degree of
impairment as would warrant a 70 percent rating. While the
veteran has reported some suicidal thoughts, he has not acted
on these thoughts since his 1998 hospitalization.
Furthermore, he has denied suicidal ideation with plan or
intent since his 2000 hospitalization. He has never
exhibited homicidal tendencies on any psychiatric evaluation
or during his course of VA psychiatric treatment. He has
not shown any obsessive rituals which interfere with routine
activities. While his speech has been reportedly tangential
and circumferential at times during VA treatment and
evaluation, he has not been shown to be in a near-continuous
panic or depression affecting his ability to function
independently, appropriately and effectively.
The veteran has shown a history of unprovoked irritability
and impaired impulse control during psychiatric evaluation
and treatment. Nonetheless, there has been no showing of
periods of violence since his service discharge in 1996 (See
SSA psychiatric evaluation). Furthermore, he has had no
recent history of drug or alcohol abuse. He has been alert
and fully oriented at all times of record, with no spatial
disorientation. His personal appearance and hygiene have
also been good (See psychiatric evaluations and notes from
psychiatric hospitalizations). The psychiatric examiners who
prepared the 2000 and 2002 evaluations for VA also found him
competent to manage his own personal finances and household
despite his depression and anxiety.
In terms of social functioning, the veteran stated that he
had trouble getting along with his family and had several
failed relationships in a short period of time. Despite his
impairment in personal relationships, the veteran, overall,
appears to be able to function in areas of judgment,
thinking, and general social situations such as VA treatment.
As discussed above, the veteran has been able to function
appropriately and cooperatively in situations concerning VA
mental care and examination. Furthermore, the veteran stated
at his 2004 psychiatric evaluation that he had good
relationships with friends and neighbors. The evidence shows
that the veteran remains able to function in daily life.
Thus, the evidence supports a conclusion that,
interpersonally, the veteran seems to be functioning
adequately despite his psychiatric symptoms.
The Board does not dispute that veteran clearly exhibits
significant impairment in his work life and social life with
family and friends. However, the current level of
dysfunction is contemplated by the current 50 percent rating.
Furthermore, in terms of occupational functioning, the
veteran has been able to function in employment in the past,
and the 2002 and 2004 psychiatric evaluations indicate that
the veteran would be able to do some work due to his level of
concentration.
In evaluating the evidence, the Board has also noted various
Global Assessment of Functioning (GAF) scores contained in
the DSM-IV, which clinicians have assigned. A Global
Assessment of Functioning (GAF) score is a scale reflecting
the "psychological, social, and occupational functioning on
a hypothetical continuum of mental health-illness." Richard
v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV at 32).
An examiner's classification of the level of psychiatric
impairment at the moment of examination, by words or by a GAF
score, is to be considered, but it is not determinative of
the percentage VA disability rating to be assigned; the
percentage evaluation is to be based on all the evidence that
bears on occupational and social impairment. See generally
38 C.F.R. § 4.126; VAOPGCPREC 10-95.
GAF is a scale from 0 to 100, reflecting the "psychological,
social, and occupational functioning on a hypothetical
continuum of mental health illness." Diagnostic and
Statistical Manual of Mental Disorders 32 (4th ed. 1994) (100
representing superior functioning in a wide range of
activities and no psychiatric symptoms).
Although the records of hospitalization in 1998, 1999, and
2000 record initial GAF scores of 35 or less at admission,
which would support the need for hospitalization, the
treatment records document scores in the 49 to 70 range
during the time period relevant to this appeal. However, GAF
scores recorded in psychiatric evaluations of the veteran
since 2000 average from 60 to 70, which indicate, generally
speaking, moderate to mild psychiatric symptoms.
Specifically, a score between 41 and 50 indicates serious
psychiatric symptoms (suicidal ideation, severe obsessional
rituals, occasional panic attacks) or serious impairment in
social, occupational, or school functioning. A score between
51 and 60 indicates moderate symptoms and moderately impaired
occupational and social functioning. A score of 61 and 70
illustrates some mild symptoms or some difficulty in social,
occupation, or school functioning, but generally functioning
pretty well with some meaningful interpersonal relationships
Consideration has also been given to the potential
application of the various provisions of 38 C.F.R. Parts 3
and 4, whether or not they were raised by the veteran. The
evidence discussed herein does not show that the service
connected disability at issue presents such an unusual or
exceptional disability picture as to render impractical the
application of the regular schedular standards. In
particular, the veteran's bipolar affective disorder has
required brief periods of hospitalization in the past.
However, these events have not presented an unusual or
exceptional disability picture and have been contemplated in
the veteran's current 50 percent rating.
Furthermore, although the veteran has been awarded a total
disability evaluation due to unemployability based on all his
service-connected disabilities, effective from February 2002,
under 38 C.F.R. § 4.16, the veteran's psychiatric disorder
alone is not shown by the evidence to present marked
interference with employment, in and of itself, as the
veteran has been shown to be able to work considering his
current cognitive functioning (See 2002 and 2004 psychiatric
evaluations). Therefore, the assignment of an extraschedular
evaluation under 38 C.F.R. § 3.321(b) is not warranted. The
veteran has not otherwise submitted evidence tending to show
that his service-connected disability is unusual, or causes
marked interference with work other than as contemplated
within the schedular provisions discussed herein.
In view of the extensive evidence of record, the
preponderance of the evidence is against an initial rating in
excess of 50 percent for the veteran's bipolar affective
disorder.
Inasmuch as the veteran's 50 percent evaluation reflects the
highest degree of impairment shown since the date of the
grant of service connection for bipolar affective disorder,
there is no basis for a staged rating in the present case.
See Fenderson, supra. When the veteran entered treatment for
a suicidal attempt in 1998, the record indicated that he was
not compliant with his medications, and he was unable to
control his impulses and mood. Nonetheless, the record
indicates that veteran's symptoms have lessened in the years
since. Specifically, the most recent 2002 and 2004
psychiatric evaluations and VA treatment records indicate
that the veteran symptoms are much more controlled, and he
has become more compliant with his medications for his
disorder which have been modified throughout his course of
treatment. Recent psychiatric evaluation indicates that the
veteran was appropriately functioning in cognition,
orientation and memory skills and was making efforts in terms
of social and occupational functioning.
As a preponderance of the evidence is against the award of an
increased rating, the benefit of the doubt doctrine is not
applicable in the instant appeal. See 38 U.S.C.A. § 5107(b)
(West 2002); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir.
2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991).
Accordingly, the claim is denied.
Duties to Notify and Assist
VA's duties to notify and assist claimants in substantiating
a claim for VA benefits are found at 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005);
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005).
Review of the claims folder reveals compliance with the duty
to notify the claimant, 38 U.S.C.A. § 5100 et seq.; 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was
accomplished by a letter from the RO to the veteran dated in
April 2004. The letter effectively satisfied the
notification requirements consistent with 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) by: (1) Informing the
veteran about the information and evidence not of record that
was necessary to substantiate the claim; (2) informing the
veteran about the information and evidence the VA would seek
to provide; (3) informing the veteran about the information
and evidence he was expected to provide; and (4) requesting
the veteran provide any evidence in his possession that
pertains to his claims. See also Pelegrini v. Principi, 18
Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App.
183, 187 (2002).
The Board observes that the RO did not provide the veteran
with this notice prior to the November 2000 adverse
determination on appeal. In this case, however, the
unfavorable RO decision that is the basis of this appeal was
decided at approximately the same time as the legislation
that established these requirements. The Court acknowledged
in Pelegrini at 120 that where the section 5103(a) notice was
not mandated at the time of the initial RO decision, the RO
did not err in not providing such notice. Rather, the
appellant has the right to content-complying notice and
proper subsequent VA process, which he has received in this
instance.
In addition, the notice requirements of Dingess v. Nicholson,
19 Vet. App. 473 (2006) were provided in the February 2007
Supplemental Statement of the Case (SSOC) from the RO. The
Board finds that the presumption of prejudice due to the
timing error for general VCAA and Dingess notice has been
rebutted in this case. Based on the communications sent to
the veteran over the course of this appeal, the veteran
clearly has actual knowledge of the evidence he is required
to submit in this case; and in this case, based on the
veteran's contentions and the communications provided to the
veteran by the VA over the course of this appeal, the veteran
reasonably understands from the notices provided what was
needed. Sanders v. Nicholson, No. 06-7001 (Fed. Cir. May 16,
2007).
Specifically, the veteran submitted lay statements showing
actual knowledge of the evidence required for increased
rating claim. In addition, the actual notices provided by
the VA are clear and pertinent to the veteran's contentions,
such that a reasonable person could understand what was
required to prove the claim. Overall, even though the VA,
under Sanders, may have erred by relying on a post-decisional
Dingess letter to conclude that adequate VCAA notice has been
provided, the veteran was afforded a meaningful opportunity
to participate in the adjudication of his claim. Overton v.
Nicholson, 20 Vet. App. 427, 435 (2006)
VA also has a duty to assist claimants in obtaining evidence
needed to substantiate a claim. 38 U.S.C.A. § 5103A (West
2002); 38 C.F.R. § 3.159 (2006). In this case, the veteran's
service, VA medical and Social Security records have been
associated with the claims file. Furthermore, the veteran
was informed of his opportunity to submit further evidence in
support of his claims in the April 2004 notice letter.
During the appeal, the veteran was afforded two psychiatric
evaluations for VA purposes dated in September 2000 and
October 2002. The Board notes that the veteran and his
representative have asked for a contemporaneous VA
examination. However, the court has recently held that a
contemporaneous VA examination is not always warranted where
the veteran has not claimed that his condition has worsened
since his last VA examination. Vacha v. Nicholson, No. 05-
3022, 2007 WL 1469396 (May 16, 2007). See also Palczewski v.
Nicholson, ---Vet.App. ----, ----, No. 05-3022, slip op. at
11, 2007 WL 1200136, at *8 (April 24, 2007) (requiring more
than the passage of time to trigger the need for a
contemporaneous medical examination). In the present case,
the veteran has not alleged by correspondence or contentions
that his claimed disorders have worsened since his last VA
examination in October 2002.
For the reasons set forth above, and given the facts of this
case, the Board finds that no further notification or
assistance is necessary, and deciding the appeal at this time
is not prejudicial to the veteran.
(CONTINUED ON NEXT PAGE)
ORDER
Entitlement to an initial rating in excess of 50 percent for
bipolar affective disorder with psychotic features is denied.
____________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs